Director of Public Prosecutions v Evans [2004] EWHC 2785 (Admin)

Case No CO/2785/2004[2004] EWHC 2785 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 20 October 2004
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MRS JUSTICE HALLETT
Between
DIRECTOR OF PUBLIC PROSECUTIONSClaimant-v-
Between
CLAIRE EVANSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR WEITZMAN (instructed by the Treasury Solicitors) appeared for CLAIMANTMR S FERGUSON appeared for DEFENDANT
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is an appeal by way of case stated against the decision of District Judge Morgan sitting at the Redditch Magistrates' Court on 9th December 2003. On that day he dismissed an information laid by the appellant (the Director of Public Prosecutions) against the respondent alleging that she had driven a motor vehicle on a restricted road contrary to section 81(1) and 89(1) of the Road Traffic Regulation Act 1984 ("the 1984 Act"); that is to say, in excess of 30 mph. The road in question was the B4551. The relevant stretches of that road over which the respondent had driven were said by the prosecution to be subject to a 30 mph speed limit by force of two orders made by the Worcester County. These were the Worcestershire County Council B4551 and C2037 Romsley Restricted Roads Order 2002 and the Worcestershire County Council (Various Roads, Romsley [Restricted Roads] Order 2002). Both orders were made on dates in February 2002 and came into force shortly after they were made.[2]They were made or purportedly made under the power conferred by section 82(2)(b) of the 1984 Act to which I will come in a moment. It was submitted for the respondent in the magistrates' court that these orders were not authorised by the subsection and were accordingly unlawful so that there was on the relevant stretch of road no valid 30 mph speed limit in force at the material time, with the consequence of course that the respondent was not guilty as charged.[3]The District Judge heard legal submissions on this issue before taking any evidence. He upheld the defence argument on the point and accordingly dismissed the information. The prosecutor now appeals contending that the magistrates' decision was wrong.[4]It is convenient to go at once to the legislation. Section 81(1) of the 1984 Act provides:
"It shall not be lawful for a person to drive a motor vehicle on a restricted road at a speed exceeding 30 miles per hour."
Section 82(1):
"Subject to the provisions of this section and of section 84(3) of this Act, a road is a restricted road for the purposes of section 81 of this Act if -- (a) in England and Wales there is provided on it a system of street lighting furnished by means of lamps placed not more than 200 yards apart; (2) The traffic authority for a road may direct -- (a) that the road which is a restricted road for the purposes of section 81 of this Act shall cease to be a restricted road for those purposes, or. (b) that the road which is not a restricted road for those purposes shall become a restricted road for those purposes."
I should say at this stage that the relevant stretches of the B4551 were not lit in conformity with section 82(1). In essence the District Judge held (see paragraphs 7 and 8 of the case stated) that where the authority desire to impose a 30 mph speed limit in respect of a road that does not have street lamps within section 82(1), they may not use the power conferred by section 82(2) which on its true construction is unavailable for that purpose. The district judge said this at paragraph 7:
"The purpose of section 82(2(a) and section 82(2(b) are to give traffic authorities power to order that a restricted road or a specified road shall cease to be a restricted or a specified road. I found these powers only related to roads that were restricted roads and not the roads which were covered by section 84. Subsection 82(1) and 82(2) must be read together."
On the face of it this reasoning allows no space at all for the application of section 82(2(b), which enables a traffic authority to direct that a road which is not a restricted road shall become a restricted road. The respondent's submission advanced this morning by Mr Radcliffe QC is that the purpose of section 82(2)(b) is only to reverse the effect of an earlier de-restriction made under section 82(2(a). The district judge held in paragraph 8, and Mr Radcliffe contends, that a road without street lamps as contemplated by section 82(1) could only lawfully be made subject to a 30 mph speed limit by use of the power conferred by section 84(1).[5]It is time to return to the statute. Section 84(1):
"An order made under this subsection as respects any road may prohibit -- (a) the driving of motor vehicles on that road at a speed exceeding that specified in the order. (b) the driving of motor vehicles on that road at a speed exceeding that specified in the order during periods specified in the order, or. (c) the driving of motor vehicles on that road at a speed exceeding the speed for the time being indicated by traffic signs in accordance with the order."
Section 84(3):
"While an order made by virtue of subsection (1(a) above is in force as respects a road, that road shall not be a restricted road for the purposes of section 81 of this Act."
Section 85(1) and (2) impose duties on the traffic authorities to erect signs indicating speed limits. Then section 85(4) provides:
"Where no such system of street or carriageway lighting as is mentioned in section 82(1) is provided on a road, but a limit of speed is to be observed on the road, a person shall not be convicted of driving a motor vehicle on the road at a speed exceeding the limit unless the limit is indicated by means of such traffic signs as are mentioned in subsection (1) or subsection (2) above."
Then section 85(5):
"In any proceedings for a contravention of section 81 of this Act, where the proceedings relate to driving on a road provided with such a system of street or carriageway lighting, evidence of the absence of traffic signs displayed in pursuance of this section to indicate that the road is not a restricted road for the purposes of that section shall be evidence that the road is a restricted road for those purposes."
Section 85(5) is to say the least opaque. I must also read direction 10 of the Traffic Signs Regulations 1994. It provides:
"(2) Signs to which this paragraph applies shall be placed at regular intervals along a road which is subject to a restriction, requirement, prohibition or speed limit which can be indicated by the signs, except that the sign shown in diagram 670 shall not be placed along a road which is -- (a) in England and Wales a restricted road as defined by section 82 of the 1984 Act and in Scotland a road as respects which there is in force an order prohibiting the driving of motor vehicles at a speed exceeding 30 miles per hour and on which there is provided a system of carriageway lighting furnished by means of lamps placed not more than 185 metres apart."
The reference to the sign shown in diagram 70 is a reference to circular repeater signs indicating the speed limit. It is common ground that speed restriction signs of the kind there referred to are present on the relevant stretches of the B4551.[6]It seems to me, with respect to Mr Radcliffe, to be plain that the ordinary meaning of section 82(2)(b) allows the authority to do exactly what was done by the Worcestershire County Council in this case, that is to say to direct that a road which is not a restricted road (for want of street lamps in accordance with section 82(1)) should nevertheless become one so as to attract the 30 mph speed limit given by section 81(1).[7]Are there any considerations which might justify a restricted and artificial reading of 82(2(b), such as that put forward by Mr. Radcliffe, namely as I have said that it permits only the reversal of an earlier de-restriction under section 82(2(a)? The district judge said (paragraph 6) that if section 82 could be deployed as the Worcestershire County Council had sought to deploy it, that would render section 84 otiose. That, with respect, is plainly wrong. Apart from anything else, section 84 allows the imposition of speed limits other than 30 mph. Moreover in relation to Mr Radcliffe's submissions as to the limited sense to be attributed to section 82(2)(b), it is to be noted there is a separate power to revoke an order made under section 82(2(a). That is provided for by paragraph 27 of Schedule 9 to the 1984 Act which I need not set out. The most that can be said is that section 82(2(b) and section 84(1)(a) confer overlapping powers. But that is no reason to impose an artificial restriction upon the meaning of either: see Harrods Ltd v Remick [1998] 1 All ER 52 58A-C.[8]Mr Radcliffe however has a somewhat deeper submission. He points to the prohibition of repeater traffic speed limit signs on a restricted road as defined by section 82 (that is the prohibition imposed by direction 10 of the 1994 regulations). He submits that if as the prosecutor contends the relevant part of the B4551 is a restricted road by force of the orders made by the Worcestershire County Council, why then the repeater signs erected there should not be there at all and are unlawful. But in that case, on the prosecutor's approach, there is an inconsistency between section 82(2(b) and direction 10. On the one hand a road without street lights may be designated a restricted road and so attract the 30 mph speed limit, but on the other hand it may not lawfully have repeater speed limit signs; but in that case a conviction for speeding will be precluded by section 85(4) even though the very purpose of the section 82(2(b) designation was to attract liability for speeding under section 81(1) at over 30 mph.[9]The prosecutor's riposte, advanced by Mr. Weitzman of counsel, is to accept that there is on the face of it an inconsistency but to submit that the primary legislation (section 82(2(b)) must prevail over the subordinate instrument, direction 10. I will return to that.[10]Further, in a supplemental skeleton argument Mr Weitzman makes careful reference to the legislative predecessors of sections 81 and 82 of the 1984 Act contained in section 1 of the Road Traffic Act 1934, sections 19 and 20 of the Road Traffic Act 1960, and sections 71 and 72 of the Road Traffic Regulation Act 1967. Each of the statutes following the Act of 1934, including the 1984 Act, was described by the legislature as a consolidating Act, although it is to be noted (as Mr Radcliffe submits) they were not described as consolidating Acts pure and simple. The Acts were to consolidate earlier provisions with corrections and improvements. However Mr Weitzman submits that this series of statutes, from section 1(4) of the 1934 Act onwards, contemplated that a length of road which lacked the street lighting required to attract the 30 mph speed light might by force of a direction be made subject to that limit. He says that section 1(4) of the 1934 Act, section 20(3) of the 1960 Act, section 72(3) of the 1967 Act all constituted or included obvious predecessors of section 82(2(b) of the 1984 Act.[11]In passing I would accept Mr Radcliffe's submission that the language of section 1(4) of the 1934 Act is by no means repeated in the later statutes. Mr Weitzman's case is that an inference is to be drawn that section 82(2(b) may be deployed to confer restricted road status, and thus the 30 mph limit, on a road without the relevant street lamps, because that is what the predecessor statutes themselves effected.[12]Mr Radcliffe submitted with reference to some of the detail in the earlier legislation that the speed restriction regime has substantially changed over time with changing conditions. The inference which Mr Weitzman invites he says, should not be drawn and is not available. I do not propose to set out all the detail of the predecessor legislation: it seems to me appropriate simply to treat the predecessor legislation as neutral, and I do so. It is right to say that Mr Weitzman points also to certain transitional provisions contained in paragraph 14(1) of Schedule 10 to the 1984 Act. I cite his supplemental skeleton argument at paragraph 26: "The effect of this transitional provision is that a road without appropriately spaced street lighting, which has been deemed to be road in a built up area pursuant to section 1(1(b) of the 1934 Act, will become a restricted road for the purposes of section 81 of the 1984 Act. If the respondent is correct, and a road without appropriately spaced street lighting cannot be a restricted road for the purposes of section 81 there is a clear anomaly created by the transitional provisions of the 1984 Act. Roads without the appropriately spaced street lighting cannot be given restricted status under the new Act but where such status was given to a road under a previous Act it is maintained by the transitional provisions. If, as the respondent maintains, the power to set a 30 mph speed limit on a road without the appropriately spaced street lighting arises only under section 84(1) of the 1984 Act this would be reflected in the transitional provisions. It is not. That argument on the face of it possesses force but, as I have said, I propose to treat the predecessor legislation as neutral.[13]What then of the inconsistency (if there is one) between direction 10 and the prosecutor's construction of section 82(2(b)? Mr Weitzman points to provisions in the regulations of 1969 and 2002 which make it clear that the prohibition on repeater signs applies only to roads where appropriately placed street lighting is in place. Section 82(2(b) has been in force throughout the operative period of these regulations, including those of 1994. Plainly the true construction of section 82(2(b) cannot have shifted according to its seeming consistency or inconsistency with successive subordinate instruments. If necessary I would accept Mr Weitzman's submissions that the statute simply overrides direction 10. I would do so because in my judgment the inconsistency is an insufficient consideration to displace the ordinary meaning of section 82(2(b) in favour of a meaning which is artificial and restrictive.[14]However for my part I am not sure that there is in truth any inconsistency. The prohibition in Direction 10 goes only to "a restricted road as defined by section 82". I think that it may reasonably be said that this reference to the definition in section 82 is a reference only to section 82(1). That subsection gives what is the actual definition of a restricted road. Section 82(2) then empowers an authority to direct in effect a departure from that definition. On that basis there is no inconsistency between direction 10 and Mr Weitzman's construction of section 82(2(b). I have paid careful attention to the submission made this morning by Mr Radcliffe that direction 10 must be referring to the whole of section 82 because the section must be read as a whole, not least by force of its opening words "subject to the provisions of this section". In general of course the section must be read as a whole. Indeed the whole part of the statute must be read as one. But Mr Radcliffe's submission does not displace the proposition that the definition properly so called of a restricted road is that given by section 82(1).[15]However that may be, I conclude that section 82(2(b) means what it says. On that footing the two orders made here by the Worcestershire County Council were lawful. I would accordingly allow the appeal and answer the question asked in the case stated, to a no, to b yes, to c yes.

MRS JUSTICE HALLETT: I agree.